Citation Nr: 9903375
Decision Date: 02/05/99 Archive Date: 02/10/99
DOCKET NO. 96-51 799 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York,
New York
THE ISSUE
Whether new and material evidence has been submitted to open
a claim of entitlement to service connection for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1971 to March
1972.
This matter comes to the Board of Veterans' Appeals (Board)
from a May 1996 RO rating decision that found that the
veteran had not submitted new and material evidence
sufficient to reopen his claim for service connection for
PTSD.
The file contains a transcript of the veteran's testimony
before a member of the Board at the RO in September 1998.
FINDINGS OF FACT
1. By a rating action of November 1993, the RO denied the
veteran's claim for service connection for PTSD; the veteran
was notified thereof and he did not file an appeal.
2. Since the last final denial of the claim in November
1993, new and material evidence has been associated with the
claims folder which is so significant that it must be
considered to fairly decide the merits of the claim.
CONCLUSION OF LAW
The evidence submitted since the November 1993 RO denial of
service connection for PTSD is new and material; thus, the
claim of service connection is reopened. 38 U.S.C.A. §§
1110, 1131, 5107, 5108, 7104 (West 1991 and Supp. 1998);
38 C.F.R. §§ 3.156(a), 20.1103 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The evidence which was of record at the time of the RO's
November 1993 decision denying service connection for PTSD
may be summarized briefly. The veteran's DD 214 indicated
that he was discharged after one year of service and that he
did not receive any medals that evince combat. Service
records show that the veteran served in Vietnam from August
1971 to March 1972.
While the veteran checked "yes" for frequent/terrifying
nightmares and depression or excessive worry on his October
1970 report of medical history prior to entering service, his
medical records show no complaints or findings indicative of
psychiatric problems during service. On his March 1972
examination prior to separation from service, the veteran was
evaluated as psychiatrically normal.
In March 1972, the veteran submitted his claim for service
connection for a nervous condition, noting that he had
treatment at a dispensary in Vietnam. A June 1972 RO
decision denied the veteran's claim for service connection
for a nervous condition.
In December 1977, the veteran submitted a statement
attempting to reopen his claim for service connection for a
nervous condition. He asserted that he was treated for this
problem at the VA medical center (VAMC) in New York, NY
within days after separation from service. He reported that
the condition has grown worse and he noted ongoing treatment
at the VAMC in Brooklyn, NY.
A March 1984 letter from the Acting Assistant Chief Medical
Administration Service indicated that the veteran had been
treated in that clinic for a nervous disorder since 1973. It
was noted that the veteran was placed on medications and that
he attended therapy once a month. His progress was
reportedly fair.
In July 1984, the RO denied the veteran's claim for service
connection for a nervous condition. The veteran submitted a
notice of disagreement in October 1984 and a statement of the
case was issued in November 1984. In his November 1984 VA
Form 9, the veteran reported that he had nightmares of bad
events including an event while in Vietnam where a hooch
next to his was blown up killing his best friend and wounding
others.
In his February 1985 Board hearing, the veteran reported
inservice stressful incidents which led to his PTSD. These
reportedly included waiting like a sitting duck at ammo dumps
that were the target of enemy shellfire and an event where a
friend who took guard duty in the veteran's place was killed
when he backed into helicopter rotary blades.
A May 1985 response letter from the Department of the Army,
U.S. Army and Joint Services Environmental Support Group
(ESG) indicated that extracts from Daily Journals submitted
by "F" Troop, 4th Cavalry, from August 1971 to January 1972
show several bursts of small arms fire, but no mention of
anyone being killed. Unit records were also included
describing missions and enemy activity in their area of
operation from October 1971 to February 1972.
On VA examination in May 1985, the veteran was diagnosed with
PTSD. The examiners noted the veteran had inservice
stressors and that he lost his wife and family in a fire soon
after separation. They stated that it was virtually
impossible to separate the war trauma from the trauma of the
loss of his wife and children soon after returning.
In an August 1985 statement, the veteran reported that his
stressors included: waiting like a sitting duck by ammo
dumps; having a friend killed when he backed into a
helicopter blade; driving a truck into an area where he was
confronted by Vietnamese; and driving a truck near
explosions.
On VA examination in December 1987, the veteran was again
diagnosed with PTSD. Stressful incidents reportedly included
a friend being killed by helicopter blades and his wife and
children burning in a fire.
In an October 1987 statement, the veteran reported that the
inservice incident regarding the helicopter blades happened
in the dry season in 1971, close to the end of the year. The
veteran reported that the person killed was a white man, that
he was a crew chief, and that they were stationed with "F"
Troop, 4th (Air) Calvary, at Lai Khe, Vietnam. The veteran
also noted that the dead man could have been named Jim and he
may have been from Kentucky.
Information in a January 1988 letter to the ESG included the
veteran's name, his service number, his company, that the
incident may have happened in the dry season of 1971 at Lai
Khe, and that a GI named "Jeni" from Kentucky walked into
helicopter blade.
On a February 1988 VA examination report, the diagnoses
included chronic PTSD.
On VA examination by a board of three psychiatrists in May
1988, it was noted that there was considerable doubt about
the existence of PTSD. The psychiatrists noted that the
veteran's trauma with guilt feelings did not appear to be as
severe as the trauma and symptoms which were experienced by
other veterans they have seen with PTSD. They also noted
that the veteran did not engage in direct combat and that the
guilt feelings as described were not associated with direct
killing. The diagnostic impression was that mild PTSD could
not be ruled out.
An August 1988 response from the ESG indicated that it was
unable to locate any information concerning the incidents
described by the veteran. The director noted that Morning
Reports were available from the National Archives and Records
Administration (NARA), Attn: NCPMA-O, 9700 Page Blvd., St.
Louis, MO 63132.
In September 1989, the Board denied that veteran's claim for
service connection for an acquired psychiatric disorder to
include PTSD. In its decision, the Board noted that while
PTSD was diagnosed largely on the veteran's account of his
exposure to stressful events during service, no objective
evidence was presented to substantiate the veteran's exposure
to a stressful event during service.
The diagnosis on a June 1993 VA examination included PTSD.
With this information on file, the RO, in November 1993,
denied the veteran's claim for service connection for PTSD,
finding that there was no new and material evidence
sufficient to reopen the claim. Subsequent to this denial,
the evidence listed below has been added to the claims file.
In an April 1995 statement from the Chief of Medical
Administration Service, it was noted that the veteran
attended the Ryerson clinic for treatment for PTSD. His
symptoms were noted to include marked anxiety, depression,
insomnia, nightmares and flashbacks. It was reported that
these symptoms intensified to the degree where the veteran
was hospitalized at the Brooklyn VAMC from March to April
1995.
An April 1995 letter from the Staff Psychiatrist confirmed
that the veteran was admitted with symptoms consistent with
his previously diagnosed PTSD. He stated that in his
opinion, the veteran should receive service connection for
this condition.
In a July 1995 statement, the veteran repeated accounts of
his stressful inservice events noting that the soldier killed
by the helicopter blade was a white helicopter mechanic named
Jimmy.
In a June 1996 letter, the Chief of the Medical
Administration Service reported that the veteran's treating
psychiatrist stated that the veteran's PTSD symptoms were
triggered by the death of his friend by a helicopter blade in
1971 and that the veteran's symptoms appear to be a direct
consequence of his experiences in Vietnam. Ongoing treatment
at the Ryerson Mental Health Outpatient Center was noted.
The diagnoses included PTSD with the stressors being
catastrophic war experiences.
During his September 1998 hearing before a member of the
Board, the veteran submitted three photographs from his
period of service and a statement from a VA Acting Chief of
Health Information Management. He waived his right to have
this evidence reviewed by the agency of original
jurisdiction. Through the course of his hearing, the veteran
testified that his military occupational specialty was
ammunitions specialist and that his daily duties involved
flying out to locations and guarding missiles and
ammunitions. He reported that he was stationed first at Lai
Khe and then Long Binh. The veteran repeated his account of
the stressful incident where a soldier who volunteered to
take the veteran's guard duty was killed by a helicopter's
rotary blade. He reported that he saw the dead man's body
parts strewn around the accident location. The veteran
repeated the name of his company and its location, and he
reported that this incident took place during the monsoon
season in late 1971 or early 1972. He also noted that the
soldier who died was from Kentucky. The veteran noted that
the photos were taken the night that the soldier was killed,
that one person in the photo was named Joe, and that another
person in the photo, by the name of [redacted], was from
Louisiana. The veteran also gave an account of another
stressful event where he was confronted by Vietnamese when
lost while driving a truck. He reported a third stressful
incident involving a race riot and his removal to another
company. The veteran noted that he sought psychiatric help
immediately after discharge from service in March 1972. He
reported that he was treated for PTSD and that until
recently, he attended a program once per month.
In the September 1998 letter from the Acting Chief of Health
Information Management, it was noted that the veteran
attended the VA psychiatric clinic for his PTSD. It was
reported that the veteran experienced flashbacks, nightmares,
and insomnia. His mood was noted to be severely depressed
and anxious and the veteran was reportedly withdrawn. Poor
frustration tolerance, night sweats, anger, mood swings,
impaired concentration and attention span, and defective
memory were also reported. It was noted that the veteran had
a history of two psychiatric hospitalizations. The veteran
was reportedly tortured with feelings of guilt after another
soldier was killed by a helicopter blade. The diagnosis
included PTSD.
II. Analysis
The veteran has argued that service connection should be
granted for PTSD. However, as already noted, this is not
the first time that such a claim has been made. A claim of
entitlement to service connection for PTSD was considered and
denied by the RO in November 1993. As noted earlier, the
veteran did not appeal that decision. As such, the RO
decision is final and the claim may not be considered on the
same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R.
§§ 20.302, 20.1103 (1998). In other words, provisions of
governing statutes and regulations preclude a full review of
the veteran's claim on the merits until after analyzing the
question of whether it ought to be reopened.
A previously and finally disallowed claim may be reopened
only when "new and material evidence" has been submitted with
respect to that claim since the last final decision on the
claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Evans v.
Brown, 9 Vet.App. 273 (1996); Manio v. Derwinski, 1 Vet.App.
140, 145 (1991). The issue of new and material evidence must
be addressed in the first instance by the Board because it
goes to the Board's jurisdiction to reach the underlying
claim and adjudicate the claim de novo. See Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet.App.
1 (1995). If the Board finds that no such evidence has been
offered, that is where the analysis must end, and what the RO
may have determined in this regard is irrelevant. Id.
Further analysis, beyond the evaluation of whether the
evidence submitted in the effort to reopen is new and
material, is neither required nor permitted. Id. at 1384.
Any finding entered when new and material evidence has not
been submitted "is a legal nullity." Butler v. Brown, 9
Vet.App. 167, 171 (1996) (applying an identical analysis to
claims previously and finally denied, whether by the Board or
by the RO).
In determining whether new and material evidence has been
submitted, the Board must conduct a two-part analysis. Manio
v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be
determined whether the evidence presented or secured since
the prior final disallowance of the claim is new and
material. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991).
"New" evidence is that which is not "merely cumulative" of
other evidence in the record. Ibid. This is done by
comparing newly received evidence with the evidence
previously of record. If new evidence is found, the Board
must then determine whether or not the new evidence is
material. Evidence is "material" when it bears directly and
substantially upon the specific matter under consideration
and when it, by itself or in connection with evidence
previously assembled, is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998) and Evans v. Brown, 9 Vet.App. 273 (1996).
It should also be pointed out that, in determining whether
evidence is material, "credibility of the evidence must be
presumed." Justus v. Principi, 3 Vet.App. 510, 513 (1992).
Second, if it is determined that the evidence is new and
material, the Board must reopen the veteran's claim and
evaluate the merits of that claim in light of all the
evidence, both old and new. Masors v. Derwinski, 2 Vet.App.
181, 185 (1992).
Using these guidelines, the Board has reviewed the additional
evidence that has been associated with the claims folder
since the November 1993 RO denial of service connection. The
new evidence includes: statements from the veteran and his
representative; letters indicating treatment at the Ryerson
Clinic; a transcript of the veteran's September 1998 hearing;
and photographs from the veteran's period of service. The
Board finds that the veteran submitted new and material
evidence in the form of additional information regarding his
alleged inservice stressor. The information from the
veteran's hearing regarding the possible date of the event
and the names of others who witnessed the event is material
in that it could help to verify the stressor event.
Accordingly, the Board concludes that new and material
evidence has been submitted for the purpose of reopening the
veteran's claim for service connection for PTSD.
ORDER
As new and material evidence to reopen the claim for service
connection for PTSD has been submitted, the appeal is allowed
to this extent.
REMAND
concluded that new and material evidence has
been submitted and a claim of service connection is reopened,
before the Board adjudicates the case de novo, the Board must
ask the veteran if he objected to the Board's adjudication,
and, if so, to specify how the Board's adjudication would be
prejudicial to his interest. n addressed by
the RO, the Board must consider whether the veteran has been
given adequate notice of the need to submit evidence or
argument on the question and, if not, whether the veteran
will be prejudiced thereby. ed medical
conclusions. In light of these decisions, the Board finds
that additional development is indicated prior to further
appellate disposition of the issue of service connection for
PTSD.
The Board notes that the veteran has been diagnosed with PTSD
on numerous occasions including on VA examination in June
1993. While stressful incidents during service reportedly
included the gruesome death of the veteran's friend when he
walked into a helicopter's rotary blade as well as a number
of events while in Vietnam, the Board notes that these events
have not been verified.
Prior to determining whether the veteran has PTSD related to
service it is necessary to verify his claimed stressors.
While the record reflects that the RO has previously referred
the case for verification of the stressful incidents related
by the veteran to the ESG [now the U.S. Armed Services Center
for Research of Unit Records (USASCRUR)], the Board notes
that the incorrect and incomplete information sent to the ESG
may have prevented verification. Specifically, the incorrect
information sent to the ESG included that the veteran's
friend's name was "Jeni" and not Jim. Additionally, the
newly submitted evidence expands the time frame in which the
alleged stressor occurred, provides the names of potential
witnesses, and identifies the victim's operational specialty
as a helicopter mechanic. The Board finds that the RO should
forward to the USASCRUR the correct information regarding the
victim's possible name as well as the newly submitted
evidence regarding the alleged helicopter fatality. Although
the veteran has provided some information regarding the
claimed stressors, the RO should make an additional request
to the veteran for more details and forward this information
to USASCRUR.
The RO should also attempt to secure Morning Reports from the
veteran's unit during the period of time that the veteran was
stationed in Vietnam. As noted by the ESG in its August 1988
response, these records are available from the National
Archives and Records Administration (NARA), Attn: NCPMA-O,
9700 Page Blvd., St. Louis, MO 63132.
In adjudicating a claim for service connection for PTSD, the
Board is required to evaluate the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by the veteran's military records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b);
38 C.F.R. § 3.304(f) (1993); see Hayes v. Brown, 5 Vet.App.
60, 66 (1993). Additionally, service connection for PTSD
requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed
in-service stressor actually occurred, and a link,
established by the medical evidence, between current
symptomatology and the claimed in-service stressor. See
Zarycki v. Brown, 6 Vet.App. 91, 97 (1993); see also Cohen
v. Brown, 10 Vet. App. 128 (1997).
In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated
on the analysis in Zarycki. In Zarycki, the Court held that
in addition to demonstrating the existence of a stressor, the
facts must also establish that the alleged stressful event
was sufficient to give rise to PTSD. In West, the Court held
that the sufficiency of the stressor is a medical
determination, and therefore adjudicators may not render a
determination on this point in the absence of independent
medical evidence. The Court also held in West that a
psychiatric examination for the purpose of establishing the
existence of PTSD was inadequate for rating purposes because
the examiners relied, in part, on events whose existence the
Board had rejected.
Upon reviewing Zarycki and West, it appears that in
approaching a claim for service connection for PTSD, the
question of the existence of an event claimed as a
recognizable stressor must be resolved by adjudicatory
personnel. If the adjudicators conclude that the record
establishes the existence of such a stressor or stressors,
then, and only then, the case should be referred for a
medical examination to determine the sufficiency of the
stressor(s) and whether the remaining elements required to
support the diagnosis of PTSD have been met. In such a
referral, the adjudicators should specify to the examiner
precisely what stressors have been accepted as established by
the record, and the medical examiner must be instructed that
only those events may be considered in determining whether
stressors to which the veteran was exposed during service
were of sufficient severity as to have resulted in current
psychiatric symptoms. In other words, if the adjudicators
determine that the existence of an alleged stressor or
stressors in service is not established by the record, a
medical examination to determine whether PTSD due to service
is present is pointless. Likewise, if the examiner renders a
diagnosis of PTSD that is not clearly based upon stressors in
service whose existence the adjudicators have accepted, the
examination would be inadequate for rating purposes.
In view of the foregoing, it is the Board's judgment that the
RO should obtain additional information from the veteran
regarding his alleged in-service stressors. Morning Reports
should also be obtained. The RO should then forward all
available information to the USASCRUR for verification of the
stressors. If indicated, the RO should then schedule a VA
psychiatric examination. The record also reflects that the
veteran may be receiving ongoing psychiatric treatment and
that copies of clinical records of such treatment have not
yet been associated with the claims file. These records and
any ongoing treatment records should be obtained. Murincsak
v. Derwinski, 2 Vet.App. 363 (1992).
In light of the foregoing, and in order to fairly and fully
adjudicate the veteran's claim, the issue of service
connection for PTSD is REMANDED to the RO for the following
action:
1. The RO should take appropriate action
to contact the veteran and determine if
he has any additional arguments to
present in regard to his claim of service
connection for PTSD. The veteran should
also be requested to submit the names,
addresses and approximate dates of
treatment of all health care providers,
VA and non-VA, who treated him for
symptoms of his psychiatric disorder
since service. When the veteran
responds, and provides any necessary
authorizations, the named health care
providers should be contacted and asked
to provide copies of all clinical records
documenting their treatment which are not
already in the claims folder. All
records should be associated with the
claims folder.
2. The RO should request from the
veteran a comprehensive statement
containing as much detail as possible
regarding the stressors to which he
alleges he was exposed in service, to
include events surrounding the fatality
involving the helicopter blade. The
veteran should be asked to provide
specific details of the claimed stressful
events during service, such as dates,
places, detailed descriptions of events
and identifying information concerning
any other individuals involved in the
events, including their names, ranks,
units of assignment or any other
identifying detail. The veteran is
advised that this information is vitally
necessary to obtain supportive evidence
of the stressful events and that he must
be as specific as possible because
without such details an adequate search
for verifying information cannot be
conducted.
3. Morning Reports from the veteran's
unit encompassing the period of time he
was in Vietnam should be requested by
contacting the National Archives and
Records Administration (NARA), Attn:
NCPMA-O, 9700 Page Blvd., St. Louis, MO
63132.
4. With the additional information
obtained and the evidence currently of
record, the RO should review the file and
prepare a summary of all the claimed
stressors. This summary, together with a
copy of the DD 214 and the DA Form 20, or
equivalent, and all associated documents,
should be sent to the United States Armed
Services Center for Research of Unit
Records, 7798 Cissna Road, Springfield,
Virginia 22150. USASCRUR should be
requested to provide any information that
might corroborate the veteran's alleged
stressors.
5. Thereafter, if the RO determines that
the existence of a stressor or stressors
has been established, the veteran should
be scheduled for a comprehensive VA
psychiatric examination to determine the
presence and etiology of PTSD. The
examination report should reflect review
of pertinent material in the claims
folder and include the complete rationale
for all opinions expressed. All
necessary special studies or tests, to
include psychological testing and
evaluation, such as the Mississippi Scale
for Combat-Related post-traumatic stress
disorders, should be accomplished. The
claims folders must be made available to
the examiner for review in connection
with the examination. If PTSD is
diagnosed, then the examiner should
specify which verified incident(s) led to
the development or aggravation of this
disorder. At the conclusion of the
evaluation, the examiner should enter a
full multiaxial evaluation, including a
score on the Global Assessment of
Functioning (GAF) Scale on Axis V, with
an explanation of the import of that
score.
6. After the development requested above
has been completed to the extent possible
and any other development deemed
necessary has been completed, the RO
should again review the veteran's claim.
This should include initial de novo
adjudication on the issue of service
connection for PTSD. If the benefit
sought on appeal remains denied, the
appellant and representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board's decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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